- 17 -
incorrect.12 Second, respondent applied $6,500 of remittances
made by the Freijes in 1999 to their 1997 liability, even though
all assessments of the 1997 liability were extinguished by
respondent's crediting of petitioner's $1,776 check as $11,776 on
July 8, 1998. Although neither party has addressed the issue, as
discussed more fully below, respondent's application of the
Freijes' 1999 remittances to their 1997 account contravenes
O'Bryant v. United States, 49 F.3d 340 (7th Cir. 1995).
Claim of Payment
With respect to petitioner's contention that certain 1997
payments were improperly applied to 1995, respondent argues that
we lack jurisdiction to consider 1995, citing Lister v.
Commissioner, T.C. Memo. 2003-17. We disagree. We held in
Lister, a Memorandum Opinion, that our jurisdiction under section
6330(d)(1) was confined to the years that were the subject of the
notice of determination, where the taxpayer had attempted in the
12 Had the Freijes' June 3, 1997, remittance of $2,800
(which was undesignated insofar as the record discloses) not been
applied in part against their 1995 liability, we assume
respondent would have treated it as a payment of estimated tax
for 1997, as he did with respect to the Freijes' $2,300
remittance made 1 week later on June 10, 1997, and their $1,500
remittance made on Oct. 6, 1997. There is evidence that the
Freijes intended all of the foregoing remittances to be payments
of estimated tax for 1997, in that they reported in the 1997
return the total of these three remittances ($6,600) as the
amount of estimated tax paid.
On this record, given the Freijes’ myriad remittances, we
are unable to conclude that a change in the unpaid liability for
1997 would have had no impact on the computation of any additions
to tax for untimely payment in 1998 and 1999.
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